Citation Nr: 1300114
Decision Date: 01/02/13 Archive Date: 01/11/13
DOCKET NO. 12-02 260 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to nonservice-connected death pension benefits, to include special monthly pension based on the need for the regular aid and attendance of another person.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and daughter
ATTORNEY FOR THE BOARD
E. Woodward Deutsch, Counsel
INTRODUCTION
The Veteran had active duty from January 1943 to December 1945. He died on July [redacted], 1979. The appellant, who was married to the Veteran at the time of his death, claims entitlement to nonservice-connected pension and aid and attendance benefits as his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) from a February 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which determined that the appellant did not meet the criteria for recognition as a surviving spouse and consequently denied her claim.
In August 2012, the Board remanded the claim in order to honor the appellant's request for a videoconference hearing. Such a hearing was conducted in November 2012 before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
As noted in the introduction, the appellant seeks nonservice-connected pension and aid and attendance benefits as the Veteran's surviving spouse, notwithstanding her remarriage following his death.
By way of history, the Board observes that the appellant was married to the
Veteran from June 1944 until his death in July 1979. The appellant subsequently entered into a second marriage, which lasted from May 1988 until April 1994. Significantly, for purposes of this appeal, she now contends that she separated from her second husband several years before their marriage officially ended. The appellant further alleges that this marriage was void ab initio because of fraud perpetrated by her second husband.
The appellant's allegations have been corroborated by her daughter, who, in written statements and testimony, has emphasized that her mother's second husband lied to her about his advanced age and the poor state of his health so that she would marry him and become his caregiver. The daughter has also testified that this man promised to leave his mobile home to the appellant in his will when, in fact, he had already bequeathed it to his own daughters. Were it not for these acts of deception, the appellant and her daughter now attest, the marriage would never have taken place. Additionally, both parties maintain that, after learning of her second husband's duplicity, the appellant immediately sought a separation, but was forced to wait until her children could provide her with another place to live and sufficient funds to begin divorce proceedings. Nevertheless, the appellant concedes that, far from contesting these proceedings, her second husband may have actually initiated them and that their marriage ultimately terminated through "a simple void" filed in the Circuit Court of Sarasota County, Florida.
The circumstances surrounding the onset and termination of the appellant's second marriage are significant as they control whether or not she qualifies as a surviving spouse for VA benefits purposes.
VA's governing regulations define a surviving spouse as "a person of the opposite sex who was the spouse of a Veteran at the time of the Veteran's death, who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse) and, except as provided in section 3.55, has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person." 38 C.F.R. § 3.50 (emphasis added).
The exceptions outlined in section 3.55 dictate, in pertinent part, that remarriage of a surviving spouse shall not bar the award of VA benefits if such a union was annulled or void; or, if it commenced on or after January 1, 1971, and was terminated by proceedings that began or ended prior to November 1, 1990. 38 C.F.R. § 3.55(a)(1), (2). Other provisions of this section contemplate renewed benefits eligibility in cases involving remarriages that terminate by death, divorce, or annulment on or after October 1, 1998. 38 C.F.R. § 3.55 (3)-(7). However, the latter provisions only extend to Dependency and Indemnity Compensation, medical care, educational assistance, and home loan benefits. As such, they are not applicable in the instant case. 38 C.F.R. § 3.55 (3)-(7). Even if these provisions were for application, they would not entitle the appellant to the benefits sought since, by her own admission, her second marriage ended well before October 1, 1998.
Based upon the foregoing, the Board reasons that, in order to meet the basic criteria for VA benefits eligibility, the appellant must establish that her second marriage was either annulled or otherwise rendered void, or that the proceedings leading to the 1994 termination of that union were initiated prior to November 1, 1990. 38 C.F.R. § 3.55(a)(1), (2). No such definitive showing has yet been made. Indeed, that is why the RO determined that the appellant's claim should be denied as a matter of law. Nevertheless, the Board finds that, given the competent and seemingly credible testimony submitted by the appellant and her daughter, VA is now on notice of the existence of additional evidence that may satisfy the threshold criteria set forth above. As such, further development efforts are warranted.
Specifically, on remand, the appellant should be asked to clarify her marital history in light of the aforementioned testimony, which suggests that her second marriage may have been legally voided, as opposed to dissolved through divorce, and that the proceedings leading to the termination of that union may have commenced prior to November 1, 1990. In this regard, the appellant should be notified of the particular types of evidence that may be used to establish that she meets one or more of the exceptions set forth in section 3.55, supra, including copies of any annulment decrees showing that her second marriage was declared null and void, as well as documentation indicating that the proceedings leading up to the termination of that marriage (whether by divorce or annulment) began prior to November 1, 1990. 38 C.F.R. § 3.55(a)(1), (2). The appellant should be advised to submit any such evidence in her own possession or, in the alternative, to complete an authorization and consent form (VA Form 21-4142) enabling VA to obtain that evidence on her behalf.
The above request for information should be accompanied by a formal notice letter in accordance with the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)). Indeed, such a letter is necessary since, to date, the appellant has not been provided with adequate VCAA notice in support of her death pension claim. On the contrary, while the February 2011 rating decision and the September 2012 statement of the case both listed the evidence considered with respect to the appellant's claim, they did so only in the context of denying that claim. Moreover, at no time has the appellant displayed actual knowledge of the specific types of information or evidence necessary to substantiate her claim; what subset of the necessary information or evidence, if any, she is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain on her behalf. 38 C.F.R. § 3.159(b) (2012). As such, she should be advised of those criteria on remand.
In addition, the appellant's claim should be developed in accordance with the specific provisions concerning domestic relations matters, which are set forth in VA's Adjudication Procedure Manual. These provisions direct that where, as here, a claimant calls into question the validity of a marriage, the RO/AMC should request a Regional Counsel opinion that addresses whether the union was, in fact, valid, or whether it was void. See M21-1MR, Part III, Subpart iii, ch. 5, sec. A(3)(d) (2012). No such Regional Counsel opinion has yet been requested in the instant case and, thus, one should be obtained on remand.
Accordingly, this case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
1. Send the appellant and her representative a VCAA notice letter, pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which advises them of the evidence and information necessary to substantiate a claim for nonservice-connected death pension benefits, to include the threshold issue of whether the appellant qualifies as a surviving spouse under VA's governing provisions. 38 C.F.R. §§ 3.50, 3.55(a)(1), (2).
In addition, the appellant should be informed of the need for additional evidence to substantiate the testimony she and her daughter have submitted, which suggests that the appellant's second marriage may have been legally voided and that the proceedings leading to the termination of this marriage in the Circuit Court of Sarasota County, Florida, may have commenced prior to November 1, 1990.
The appellant should be notified of the particular types of evidence that may be used to substantiate the above testimony, including copies of any annulment decrees showing that her second marriage was declared null and void, as well as documentation indicating that the proceedings to terminate this marriage began prior to November 1, 1990. The appellant should be advised to submit any such evidence in her own possession. As it appears that evidence mentioned at the hearing has not yet been associated with the claims file (specifically the document saying "a simple void"), additional copies of any evidence provided during the hearing should be submitted.
2. If sufficient evidence establishing the type of dissolution of the marriage between appellant and her second husband is not received in response to the above, the RO/AMC should attempt to contact the appropriate authority in Sarasota County, Florida to obtain information concerning the April 1994 dissolution of the marriage between the appellant and her second husband John Bohunicky. All efforts to contact the county authorities should be noted in the claims file. The appellant should be advised of any inability to obtain the requested evidence.
3. After the above development is completed and all available evidence associated with the claims file, forward the claims file to appropriate personnel for a Regional Counsel opinion, if necessary. See M21-1MR, Part III, Subpart iii, ch. 5, sec. A(3)(d). The Regional Counsel opinion should address whether the appellant's second marriage was valid or if it was void. The opinion should include a discussion of the appellant's contention that this marriage was rendered void and that the proceedings leading to its termination began prior to November 1, 1990.
4. After the development requested above, as well as any additional development deemed necessary, has been completed, the record should again be reviewed and the claim readjudicated. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order.
By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by VA. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).